The political debate that has taken over Washington concerning the future of the Supreme Court has overshadowed the impact Antonin Scalia’s death will have on the current institution.
The court prides itself on keeping a safe distance from the gridlocked political branches across the street and down Pennsylvania Ave. While justices have their bitter debates and occasional flare-ups, the statements released this weekend by Scalia’s bench mates reveal that despite occasional ideological gulfs, there was an undercurrent of deep respect.
“Nino Scalia was a legal titan,” wrote Justice Stephen Breyer, who spent years defending his interpretation of the Constitution from Scalia’s attacks.
“Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation,” wrote Elena Kagan, the court’s most junior member. She did not mention that he taught her how to duck hunt.
Clarence Thomas, who perhaps came closest to sharing Scalia’s legal outlook, said simply, “I will miss him beyond all measure.”
The Supreme Court — housed in the marble palace — seems at times its own community, cut off from the rest of Washington. There are no cameras in the courtroom. Justices don black robes. Some government lawyers wear morning coats. One of the wood paneled elevators is still run by a human being. There’s even an internal newsletter that announces recent births, weddings or retirements among the clerks, staff and employees.
When all of Washington closes down for a snowstorm, regulars know that the court will meet to get its work done.
And inside that marble palace, there is work at hand. If previous deaths serve as precedent, Scalia’s coffin will be brought to the Great Hall that leads to the courtroom in the coming days and the longest serving justice of the current court will be mourned by those who served with him. (The court has not made an announcement about plans for a memorial.)
As news of Scalia’s death spread, long-time advocates and former clerks gathered in green rooms across the city preparing to discuss his legacy. Some marveled at how fundamentally different arguments will seem when the court resumes its hearings next week.
Justice Anthony Kennedy, often the swing vote in close cases, is a target for advocates, but Scalia was the magnet. Smart lawyers knew he could pounce without warning and take over the tenor of the argument.
Even members of the press corps — armed with their yellow highlighters —– knew that when a big opinion was released and Scalia was in dissent, his carefully crafted comeback would make good copy.
And while Congress and the President prepare for what could be a vicious battle for the next justice, the sitting justices will have to sort out how to handle the cases at hand.
When the court is evenly divided, it is left having to simply uphold the lower court decision. There is no precedential value in such an opinion.
Scalia’s unexpected death means that he most likely left behind unfinished drafts of opinions in cases the court has already heard including those concerning affirmative action, public sector unions and voting rights.
For the first time in 30 years, his chair will be empty when the court hears a major case such as the upcoming challenge to a Texas abortion law.
Perhaps, more than any other justice, Chief Justice John Roberts cares about the institutional legitimacy of the court. As its leader, he is going to have to navigate what could be an extended period without a full bench.